Prima Facie Case in Medical Negligence
The Elements
Duty Breech Causation Damages
Duty
What is the legal relationship between the defendant and plaintiff that will support a tort claim?
Treating Physicians
If the doc lays hands on the patient, is there a duty? Can this duty be terminated? When is a patient abandoned? How broad is the duty? Is a specialist consultant responsible for the patient's entire condition or can she rely on the primary physician? What if you only talk on the phone?
Limited Engagements
Occupational medicine What is the duty of physicians who do physicals, examinations, and limited treatment for occupational injuries and licensure? What about ambulatory care centers? Does the doc you consult for a limited purpose have a duty to inquire into other health issues? What if they notice something beyond their engagement?
Invisible Physicians
What about radiologists and pathologists who never see the patient, but read tests that affect patient care? Consultants who do not examine the patient Physicians who review or supervise the care of other physicians in training programs Physicians who are the legal supervisors of paramedical personnel
Breech
Breech is of the duty to treat the plaintiff reasonably. Easy in common knowledge cases Running a stop sign Letting your pet alligator run loose Requires expert testimony in medical cases What is the standard of care? Was it breeched?
Standard of Care
The legislature allows physicians and other professionals to set the standard of care for their services What would the reasonable practitioner do? Does this mean everyone must do the same thing? What is a respectable minority view? What is a quack?
Establishing Standard of Care
Expert testimony Professional standards documents Statutes and regulations Administrative guidelines adopted by the provider or institution TJ Hooper
Limitations on Expert Testimony
School of practice Limits of specialty expertise Example of the locality rule
Breech of Standard of Care
This is usually established at the same time as the testimony on the standard of care This becomes more complicated if there is a factual dispute about what was done
Causation
The hardest issue in many cases Two classes of causation Injuries unrelated to the patient's underlying condition Injuries related to the underlying condition
Causation - Unrelated Injuries
These are injuries that would not be anticipated in the normal course of the disease or treatment Foreign body cases Chipped teeth in anesthesia Dislocated shoulder from improper placement during surgery These are the sort of injuries that justify res ipsa loquitur instructions
Causation - Related Injuries
This is what undermines no-fault proposals for medical malpractice compensation Most people seeking health care have something wrong with them Most medical treatments have risks, even when done perfectly Many people will not get better, even with proper treatment How do you tell what is caused by negligence?
Bad Things to Healthy People
Orthopedic surgeons and middle-aged guys Anesthesia injuries in elective surgery Vanity surgery If there is negligence, then causation is not hard If there is no negligence, it becomes an informed consent issue
Bad Things to Sick People
The negligence trap If plaintiff can show that the defendant was negligent, then the jury is not sympathetic to evidence that the negligence did not cause the injury Most common in obstetrics Most birth injury cases were not caused by the physician's negligence Juries like to give money to babies OBs screw up in other ways
Statistical Causation
Core issue in products liability cases for drugs and other toxic torts Even worse than birth injuries for jury accuracy Erin Brockovich syndrome Really believe in a lie and it becomes true and you become rich Even Harvard SPH fell for it Bad for science, more when we do drugs
Damages
See handout Often part of causation in medical care cases Key issue in many medical cases is sorting out pre-existing injuries and injuries from the course of the disease from those caused by negligence